Lunch seminar with Steven McDowell – University of Copenhagen

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Lunch seminar with Steven McDowell

Tangible Salience, Political Shocks, and the Timing of Litigation in Interstate Territorial and Maritime Disputes 

Abstract:

When do states resort to litigation in territorial and maritime disputes? Much of the existing literature surrounding the use of legal settlement methods in territorial conflict focuses either on compliance with the judgments of international courts and arbitral panels or on broad, macro-level factors that remain stable over time. Such theories are of limited application when it comes to explaining why disputants prefer litigation at some time points and not others. Therefore, I propose a theory of the timing of litigation in territorial and maritime disputes that focuses on the micro-level events and conditions that determine the “ripeness” of a dispute for the use of legal settlement methods.

My theory decomposes litigation into a two-stage process. The first stage deals with the initial proposal to litigate a dispute. Changes in tangible salience, driven by resource exploration or discoveries within a disputed area, and political shocks, comprised of government turnover, regime change, or domestic unrest, both cause states to attempt to resolve ongoing territorial and maritime claims by creating preferences opposed to the territorial status quo. When either of these catalysts interacts with settlement failure, defined as the repeated failure of settlement attempts to generate a stable resolution, a litigation proposal becomes likely as states discount the risks of adjudication or arbitration in the face of a costly stalemate.

However, successful litigation also depends upon a second stage, namely, the acceptance of a litigation proposal by the targeted opponent. Acceptance is predicated upon similar changes in tangible salience or political shocks, since states that are satisfied with a dispute’s status quo are unlikely to pursue an uncertain legal settlement process. But in order for litigation to ensue, targeted states must also either have strong legal claims to the disputed territory or find that the costs of maintaining a territorial claim outweigh the substantial risks of arbitration or adjudication. Importantly, third party involvement may alter these costs and shorten the time between a litigation proposal and acceptance by a targeted opponent, but the delay between a litigation proposal and its acceptance may still last for years or even decades.

I test my theory using a mixed methods approach. Quantitative methods employed on newly collected data on territorial and maritime disputes between 1945 and 2015, along with carefully selected qualitative case studies on pro-litigation third party activity, are used to gauge the validity of my theoretical claims. The conclusions produced by this project will be relevant both to scholars of international litigation and to policymakers involved in international judicial institutions and the settlement of territorial and maritime claims. For scholars, my shift towards micro-level variables and my focus on litigation will improve our understanding of why states would resort to a risky, yet highly effective dispute resolution method. For policymakers, understanding the conditions that make international adjudication and arbitration attractive may aid in the management of future territorial and maritime contentions, many of which have the potential to create conflict between states now and in the near future.

Registration: For participation in the event please use this registration form no later than 22 March, 11:00.

You are welcome to bring your own lunch bag.